The Meaning 
of Free Speech 

{For Pacifists) 


by 

THEODORESCHROEDER 

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library of congress 


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THE FREE SPEECH LEAGUE 
56 EAST 59 STREET 
NEW YORK 
1917 



SEP 18 JS17 


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On August First, 1917, there was 
held in Madison Square Garden, New 
York 'City, a Free Press Meeting to 
protest against the recent arbitrary 
suppression of eighteen radical and 
pacihst periodicals. At that meeting 
1 sought to promote a unity of all 
interested groups on a common stan¬ 
dard of free speech. This was so much 
in line with the platform of the 
PEOPLFS COUNCIL OF AMERICA 
that I am requested by it to prepare 
my statement for wider circulation 
and for more permanent service. I 
herewith submit my compliance with 
that request. T. S. 


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The 

MEANING OF FREE SPEECH 
(For PacMsts) 

1 view printing as but an extended 
form of speech and so use the terms 
free speech as including freedom in all 
modes of transmitting ideas. 

Next let me say that I am not a 
good pacifist, I am not for peace at 
any price, but I believe in free speech 
even for the pacifists. To deny peo¬ 
ple the right to hear pacifists is to 
deny their right to pass judgment on 
the issues of peace and war. 

I hope that Prussianism will not be 
justified by German success. I wish 
the race had developed sufficient in¬ 
terest in further democratization so 
that Kaiserism could be defeated at 
its own violent game and in all its 
forms, by a resistance, democratic¬ 
ally begun and democratically con¬ 
ducted. Perhaps when that is pos¬ 
sible it will also have become un¬ 
necessary. I want the Kaiser beaten 
by and for a growing democracy, not 
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by and for the impairment of such 
democracy as we have achieved. 
More democracy depends as much up¬ 
on the attainment and preservation 
of free speech as upon the destruction 
of Kaiserism. 

These are but different essential 
avenues to the goal of further democ¬ 
ratization. Therefore we should be 
as eager to fight for free speech as for 
the destruction of Kaiserism. 

Lust For Power. 

So long as the people are indifferent, 
and our judges and our public officials 
harbor Kaiserism in themselves, we 
will not have free speech, neither will 
we have much of the substance of 
democracy. Under such circumstances 
constitutional guarantees like Ger¬ 
man treaties, become mere “scraps of 
paper.” The lust for power is strong 
in all of us. We must be on our 
guard against the Kaiser’s tempera¬ 
ment in ourselves and in our “demo¬ 
cratic” officials, as well as to be on 
guard against Kaiserism across the 
Ocean. When one openly claims a 
divine right to rule, that claim, soon¬ 
er or later will effectively be chal- 


lenged. More subtle and. therefore 
more dangerous to democracy are 
those who, without claiming a divine 
right, yet act under the cloak of de¬ 
mocracy as though they had both di¬ 
vine right and divine omniscience. 
All censors unconsciously approxi¬ 
mate this attitude. 

Kaiser Believes In It 

I have never met any one that dis¬ 
approved of the words free speech. 
The infamous High Commission 
Court and the equally infamous Star 
Chamber Courts, as well as William 
Blackstone that arch high priest of 
all tory lawyers, all these agree in be¬ 
lieving in free speeeh properly under¬ 
stood." Probably the Kaiser would 
have professed to believe in free speech 
but not free license, even at the very 
moment when he encouraged the 
Austrian Emperor to insist upon 
abridging free speech in Serbia. 

In the diplomatic correspondence 
between Austria and Serbia, which 
ended in the declaration of war, the 
final issue resolved itself mainly into 
an issue over the unwillingness of the 
Servian government to abridge the 
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constitutionally guaranteed free 
speech of its own subjects. Austria 
demanded that Serbia suppress Ser¬ 
vian patriots at home who were de¬ 
nouncing Austro-Hungary. Serbia 
refused and the war resulted. (1). 

Importance of Definition 

The whole free speeeh controversy 
therefore resolves itself into one 
about the meaning of “free speech.” 
Most people believe in free speech for 
all who agree with them, and for a 
few who mildly and politely disagree, 
and for others who disagree only as 
to “non-essentials.” Some radical 
agitators use “free speech” as merely 
another name for their ism, and show 
chis by their indifference when those 
of other beliefs have their freedom of 
expression abridged. 

When these groups are not inter¬ 
fered with they imagine free speech 
exists for all, or that its abridgment 

(1). See chapter: Free Speech and the 
War; in Free Speech for Radicals, enlarg¬ 
ed edition, p. 191, where the diplomatic 
correspondence is analyzed and quoted 
from N. Y. Times of Aug. 9th, 1914. My 
essay was first published in. The New Re¬ 
view, March, 1915. 

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as to others is none of their concern. 
It would be better if such persons 
acquired a general principle of free 
speech, under which they will defend 
the liberty of their enemies as well as 
of their friends. Many need to learn 
the facts about the solidarity of 
liberty, and the importance of evil 
tyrannous precedents. 

Unfortunately few will defend the 
right of others to intense disagree¬ 
ment. Most people have no ideas 
which need defending or which they 
consider important enough to con¬ 
tend for. Accordingly such persons 
think that unabridged free speech has 
generally and always existed in these 
United States. Such blind faith pro¬ 
motes the development of censorship. ’ 
The precedents as to constitutional 
construction which may be establish¬ 
ed under the pressure of war condi¬ 
tions may plague us for centuries. 

For these and other reasons, it be¬ 
comes important that we unite on a 
standard of Free Speech. 

The Blackstone Evil. 

What then should free speech mean 
to us? Some American courts have 
adopted the definition of Blackstone 
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and of the British tyrants whom he 
defended. A more intelligent and 
more democratic view will lead to the 
uncanonizing of Blackstone and the 
following of his opponents. For 
centuries before our revolution the op¬ 
ponents of the divine right of priests 
and of kings and of their judges were 
denouncing the limits of free speech 
as enforced by the English courts and 
approved by Blackstone. It was the 
opinion as to free speech, that was 
advocated by these republicans and 
dissenters which was meant to be 
written into our constitutions, not 
the free speech of the rulers by “di¬ 
vine-right” as formulated by Black¬ 
stone. Undemocratic judges think 
and act otherwise. 

Friends of Freedom 

For centuries before our revolution 
the friends of free speech contended 
for a very definite idea. In America 
their view of free speech finally tri¬ 
umphed over that of Blackstone, and 
over that of the judges by divine- 
right. It was that view, the very 
opposite to Blackstone’s, that was 
finally written into our constitutions. 

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It is that view of free speech that I 
am now contending for. That which 
tyrants seriously disapprove in 
others, they always say has a “dan¬ 
gerous tendency.” Contrary desire 
is the only standard that has ever 
been devised for judging the existence 
of an evil psychologic tendency. 
That idea which is dangerous to .the 
claim of prerogatives and for special 
privileges, or dangerous to a claim of 
superiority, by discrediting their re¬ 
lative omniscience in matters vital to 
their economic interests or to their 
vanity, such an idea is always de¬ 
nounced as of “dangerous tendency.” 
Then upon the pretense of such a con¬ 
structive danger they proceed to 
apply censorship, and the punish¬ 
ment of ideas as such. No other ex¬ 
cuse ever was offered or ever will be 
accepted for any form of censorship. 

The friends of free speech denied the 
sufficiency of this justification for 
censorship. Since there was no other 
excuse they also denied the jur¬ 
isdiction of the state to deal with 
any mental offense, upon the basis 
of a mere speculation about the 
problematic psychologic tendency of 
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a disapproved idea. Only actual and 
material injuries to person or pro¬ 
perty could be rightfully punished. 
Mere words, they insisted, should 
always remain free, that is, they 
should be conceded to be beyond the 
jurisdiction of the state. (2). 

American Libertarians 

This conception of free speech was 
brought to America by Roger Will¬ 
iams. Through his effort and that of 
his followers, including Madison and 
Jefferson, this conception triumphed 
over the puritan theocracy and was 
incorporated into our organic law. 

This is the conception of free speech 
for which stood the Continental Con¬ 
gress. These patriots said we needed 
liberty of the press to shame and 
intimidate public officials into more 
honorable modes of conduct. (3). 

This was the conception of free 
speech held by Jefferson, when in the 

(2) . See chapter: “Overt act and actual 
injury versus evil psychologic tendency” 
in my: Constitutional Free Speech de¬ 
fined and defended. (Now in prepara¬ 
tion). 

(3) . Journal of the Continental Con¬ 
gress, vol. 1, p. 108, Edition 1904. 

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Virginian Act of Toleration he had it 
said: “To suffer the civil magistrate 
to intrude his power into the field of 
opinion, or to restrain the profession 
and propagation of principles on sup¬ 
position of their ill tendency, is a 
dangerous fallacy, which at once de¬ 
stroys all liberty, because he being of 
course, judge of that tendency will 
make his opinion the rule of judg¬ 
ment, and approve or condemn the 
sentiments of others only as they 
shall square with or differ from his 
own. It is time enough for the right¬ 
ful purposes of civil government for 
its officers to interfere when princi¬ 
ples break out into overt acts against 
peace and good order.” (4). 

United States Supreme Court 

This is the interpretation of the 
constitutional guarantees that the 
American people endorsed when they 
elected Jefferson to the Presidency on 
the issue of his opposition to the 
Alien and Sedition law. Even the 
United States Supreme Court has 
once given its approval to the above 


(4). Free Press Anthology, p. 95. 
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views of Jefferson as being authorita¬ 
tive on the meaning of our constitu¬ 
tional liberty. (5). This is the only con¬ 
ception of free speech that is to be de¬ 
rived from a critical study of the words 
of our constitutional guarantees, (6) 
or from the antecedent historical issue 
over the evils to be remedied, (7) or 
from the synthetic method of consti- 
utional interpretation. (8). This is 
the only eonception of free speech 
that is consistent with the democratic 
rights of the people to hear and to 
know all that is to be known, of the 
eonditions upon which it is their con¬ 
ceded right and accepted duty to pass 
a democratic judgment, for the deter¬ 
mination of the policies of their gov- 


(5) . Reynolds vs. U. S. 98 U. S. 162. 

(6) . Concerning the meaning of free¬ 
dom of the Press; Central Law Journal, 
March 26, 1909; Revised in Chap 6, 
Free Speech for Radicals. 

(7) . Obscene Literature and Constitu¬ 
tional Law, Chap. II; Republished from; 
Central Law Journal, Mch. 18-25, 1910. 
For more thorough work see: Constitu¬ 
tional Free Speech defined and defended; 
(in preparation). 

(8) . See: Methods of Constitutional 
Construction; Also for same: Free Speech 
for Radicals, enlarged edition. Chap. 8. 

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ernment. To limit intellectual liberty 
is so far to deny and destroy demo¬ 
cracy. 

Formulae for Free Speech 

Before closing, let us state the 
above concept of free speech in brief 
dogmatic formulae. This can be 
done in terms of the (a) mental, {b) 
jurisdictional, (c) verbal or {d) con¬ 
stitutional aspects. Let us express 
the same idea from each of these view¬ 
points. 

(a). No person shall be disadvan¬ 
taged by the state for a mere psycho¬ 
logic offence, even though based upon 
a problematical speculation about 
the prospective realization of a dis¬ 
approved, imaginary psychologic 
tendency, upon some future hypo¬ 
thetical hearer or reader. 

(h). The state has no rightful jur¬ 
isdiction to punish any one except 
for an actual and material injury, or 
an overt act capable of inflicting such 
injury and judged so according to the 
known laws of the physical universe. 

(c). No one shall be disadvantaged 
by the state for a mere use of words 
or other method of expressing ideas, 
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so long as these are dissociated from 
actually ascertained resultant injury, 
and from materially injurious overt 
act. 

(d). The constitutional right of 
free speech is operative only so far as 
the state successfully protects each 
and all of its inhabitants against 
privately inflicted injury, as well as 
official interference, for all expression 
or transmission of mere ideas, that 
is so long as unconnected with pre¬ 
designed and resultant actual and 
material injury, or pre-designed re¬ 
sultant overt acts which, according 
to the known laws of the physical 
universe, are judged capable of in¬ 
flicting such actual and material 
injury. 

When public officials observe their 
oath to uphold the constitutional 
guarantees of free speech, and enough 
persons will vigorously uphold such 
public oflEicials, then no one will be 
prevented from receiving, even the 
most odious opinion—aboutthe most 
obnoxious subject—expressed in the 
most offensive manner—b 3 - the most 
despised person. Then will speech be 
free and democracy hold sway. 

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